THE KING v. H. R. S. FERNANDO et al

082-NLR-NLR-V-48-THE-KING-v.-H.-R.-S.-FERNANDO-et-al.pdf


The King v. H. K. S. Fernando.
249
[Court of Criminal Appeal.]
1947 Present: Howard C.J. (President), Jayetileke and Dias JJ.
THE KING v. H. R. S. FERNANDO, et al.
Appeals Nos. 34-35, with Applications 82-83.
S. C. 81—M. C. Avissawella, 35,325.
Burden of proof—Prima facie case established by prosecution—Explanationoffered by accused—Proper direction to Jury as to burden of proof.
Where a prima facie case is made out by the prosecution and theaccused by his defence offers an explanation, the Jury should be directedthat the burden of proof that the offence charged has been committedis still on the prosecution, and that if, upon a review of the evidence on.both sides, they are in doubt, they ought to acquit. It is a misdirectionto tell them that because the evidence for the prosecution establisheda prima facie case, the burden of proof is shifted to the accused.
A
PPEALS, with applications for leave to appeal, against twoconvictions in a trial before a Judge and Jury.
H. Wanigatunga (with him C. C. Rasaratnam and J. Pathirana), forthe 1st accused, appellant.
M. M. Kumarakulasingham (with him K. Sivasubramaniam and.M. E. Dharmawardene), for the 3rd accused, 2nd appellant.
E. L. W. de Zoysa, C.C., for the Attorney-General.
Cur. adv. vu It.
250HOWARD C.J.—The King v. H. R. S. Fernando.
June 3,1947. Howard C.J.—
In this case five persons were charged before a Judge and Jury of theoffences of—
being members of an unlawful assembly, the common object
of which was to commit housebreaking by entering the houseof Mary Nona,
in the course of the same transaction, committing murder by causing
the death of K. A. Pieris Singho, an offence which they knewwas likely to be committed in prosecution of the commonobject, and
in the course of the same transaction committing murder by
causing the death of K. A. Pieris Singho.
The Jury by a unanimous verdict found the 3rd accused, that is to say.the 2nd appellant, guilty on counts 1 and 2 and the 1st accused, thatis to say, the 1st appellant, guilty on the same counts by a majorityof five to two. The 2nd, 4th and 5th accused were found notguilty.
It has been contended by Counsel for the appellants that the verdictof the Jury in regard to the appellants cannot stand by reason of amisdirection in law in the charge to the Jury. On page 44 the followingpassage occurs: —
“ If you find that you have a reasonable doubt about the case forthe prosecution, it is your duty to acquit the accused. If, however,you find the story for the defence to be true, or probably true, inpreference to the story for the prosecution, you have to acquit theaccused.
I forgot to tell you one little matter, gentlemen. In regard to thedefence, the burden of proof is on the defence, but you will keep inmind that the burden of proof on the accused is not so heavy as theburden of proof upon the prosecution, who have establish theircase beyond reasonable doubt. When you consider the two cases—the prosecution case and the defence case—and come to the conclusionthat the defence version is more probably true than the prosecutionstory, then the defence has discharged its burden. So that, gentlemen,if you thmk that the defence is true or very probably true in preferenceto the story for the prosecution, you will acquit the accused.”
Counsel for the appellants contend that this passage does not correctlyformulate the law in regard to the burden of proof. It is stated that theburden, of proof is on the defence and that the defence discharges itsburden if the Jury come to the conclusion that the defence version ismore probably true than the prosecution story. Also, if the Jury thinkthat the defence is true or probably true in preference to the story for theprosecution, .they will acquit the accused. The Jury should have beeninstructed to acquit the accused not if their story was to be preferred
HOWARD C-I.—The King v. H. R. S. Fernando.
251
to the story for the prosecution, but if after hearing all the evidencethey had a reasonable doubt as to their guilt. Again on page 49 it isstated as fellows :—
“So that, gentlemen of the Jury, it is open to you, as I have toldyou already, if you have a reasonable doubt in regard to the storyfor the prosecution, to acquit the accused.
If you come to the conclusion that the defence is very probablytrue, then, also, you will acquit them.”
In regard to this passage Counsel for the appellants maintain that toinstruct the Jury to acquit “ if you have a reasonable doubt in regardto the story for the prosecution “ is not an accurate statement of the law.The Jury should have been instructed to acquit, if on the whole of theevidence and not merely by reason of the story for the prosecution, theyhad a reasonable doubt. Also the instruction to the Jury to acquit if“ you come to the conclusion that the^defence is very probably true ”is not in accordance with the law. It places too heavy a burden on theaccused. The instruction should have been to acquit if the story putforward by the defence creates in the minds of the Jury a reasonabledoubt.
We are of opinion that the contention of the appellants’ Counsel iscorrect. In R. v. Stoddart1 it was held by the Court of Criminal Appealin England that where a prima facie case is made out and the defendantby his defence offers an explanation the Jury should be directed that theburden of proof that the offence charged has been committed is still onthe prosecution, and if upon a review of the evidence on both sides theyare in doubt, they ought to acquit. It is a misdirection to tell them thatbecause the evidence for the prosecution established a prima facie case,the burden of proof is shifted to the defendant. The same principleis formulated in the House of Lords is Woolmington v. Director of PublicProsecution In The King v. James Chandrasekera’ this Courtconsidered the effect of the latter decision in relation to the exceptionsreferred to in section 105 of the Evidence Ordinance. The Court decidedthe general principle formulated in the Woolmington case that the burdenof proof rests on the prosecution throughout applied in Ceylon. Onpage 126 the following passage occurs in the judgment of Soertsz J.: —
“ Similarly, in a case in which the accused’s plea is simply that heis not guilty, or in a case in which he pleads an alibi, if he creates asufficient doubt in the minds of the Jury as to whether he was presentor not, or as to whether he did the act or not, or as to whether he hadthe necessary mens rea or not the accused is entitled to be acquittedbecause, in such an event, the prosecution has not sufficiently proved itscase.”
The only exception to this rule is when the defence calls in aid a generalor special exception. or proviso. We have, therefore, come to theconclusion that there was a mis-statement of the law in the summing up,that such mis-statement was on a vital point and amounts to a misdirec-tion which vitiates the convictions.
1 (1909) 2 Criminal Appeal Reports 217.* {1935) A. C. 462.
» (1942) 44 N. L. R. 97.
252
SOERTSZ S.P.J.—The Attorney-General v. Coder.
We have -given careful consideration to the question as to whetherwe should direct a retrial.. The offence was alleged to have been com-mitted on December 30, 1945. The case for the Crown rested on thecredibility of Mary Nona. The evidence in regard to this witness’sidentification of the robbers cannot be regarded as satisfactory. Itsassailability will be increased by the passage of time" The chances of aconviction in the event of a fresh trial are in our opinion remote. Inthese circumstances the appeal is allowed and there will be no order inregard to retrial.
Appeals allowed.